The ad hoc committee investigating the fitness of suspended public protector Busisiwe Mkhwebane to hold office will recommend to the National Assembly that she be removed from office.
This after she was found guilty of incompetence and misconduct on a number of counts by the majority of committee members two weeks ago.
The ANC, DA and ACDP members of the committee agreed at a meeting on Friday to support a recommendation to the National Assembly that Mkhwebane be removed from office, but the EFF and Al Jama-ah opposed it.
Mkhwebane will be given an opportunity to comment on the voluminous draft report before it is submitted to the National Assembly. The committee will reconsider its recommendation in the light of her response.
The support of Mkhwebane’s removal by the three parties will provide the two-thirds majority required in terms of section 194 of the constitution to remove the head of a chapter nine institution which includes the public protector.
EFF MP Omphile Maotwe said her party would consider taking the committee’s “flawed” and rushed report on review, arguing that the process of conducting the inquiry was procedurally unfair and a witch hunt meant to punish Mkhwebane who had not had legal representation over the last few months. Maotwe accused MPs of following the predetermined mandate of their parties, a charge strongly rejected by ANC MPs.
Committee chairperson Qubudile Dyantyi insisted that Mkhwebane had not been denied legal representation but had elected not to use the representation offered to her. ANC, DA and ACDP MPs were adamant that the inquiry process of over a year had been meticulously fair.
Al Jama-ah leader Ganief Hendricks said he did not support the removal of the suspended public protector who must serve her full term which terminates in October.
An independent panel led by retired Constitutional Court judge Bess Nkabinde found that there was prima facie evidence of incompetence and misconduct and recommended to the National Assembly that this be investigated further. This led to the establishment of the committee which sustained most of the findings of the panel.
The committee found that Mkhwebane did not act with independence and impartiality in her investigations which were often conducted with a predetermined outcome in mind. She was found to have intimidated, harassed and victimised certain members of staff.
Committee members also agreed that Mkhwebane had displayed misconduct and incompetence in failing to effectively and efficiently manage the resources of the public protector’s office because her “reckless” litigation reduced the budget available for its core mandate and prejudiced its investigations and administration.
Several of Mkhwebane’s court actions to defend her reports were rejected by the courts, several of them with personal costs against her. The majority of committee members agreed that she intentionally failed to prevent fruitless and wasteful expenditure on these court cases which had little prospect of success.
Mkhwebane was also found by the majority of committee members to have displayed incompetence and misconduct and a lack of impartiality in her handling of the Sars “rogue unit” case which implicated former Sars commissioner Pravin Gordhan and former Sars executive Ivan Pillay in wrongdoing linked to the establishment and operations of the unit.
She was also found to have been negligent in her handling of a classified report on the unit by the Inspector-General of Intelligence.
Mkhwebane was found guilty of misconduct and incompetence in her handling of her reports into the Absa lifeboat and the Vrede dairy farm matter. On the Vrede dairy farm complaint MPs said Mkhwebane had shown no will to properly investigate the matter including failing to interview the intended beneficiaries of the project.
On the lifeboat issue the committee found that Mkhwebane met with the presidency and the State Security Agency but did not disclose this in her investigation report as she was legally required to do. No transcripts were made of the meetings. The majority of committee members believed there was a deliberate bid to keep these meetings secret whereas the public protector was under a legal obligation to disclose how she arrived at her recommendations and remedial action.
The committee found that Mkhwebane had exceeded her powers and negatively tarnished the reputation of the public protector’s office. It agreed that Mkhwebane’s conduct was “dismissive, high-handed, biased and procedurally irrational and unfair” in the conduct of the lifeboat investigation.
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